10 Notification of the Applications

There were no significant criticisms made of the notification process. Some of the institutional respondents commented favourably about being sent the applications by the MDC prior to notification.

Concerns were however raised by several parties interviewed that the applications were notified prior to the s92 technical reviews being completed. These parties included Fish and Game, Save the Wairau and the Freshwater Anglers Club. Concerns expressed include:

• Fish and Game said that “the additional consents sought in March 2006 vindicated some of their concerns about the completeness of the applications” and that “they were appalled that the applications were notified prior to the MDC receiving the technical advice.” They indicated that they would like to see “a pre-notification process for an application of this type”.

• “Save the Wairau” said that because the technical reviews had not been completed, even by the time that submissions closed, it meant that many local landowners struggled to assess the effects of the applications on their properties.

• The chairman of “Save the Wairau” wrote to the MDC Mayor on 11 August 2005 expressing concern that the applications might be notified before all the technical reviews were completed. The Mayor wrote back on the 17 August 2005 saying that “in summary, there is no perfect process for more complicated applications such as the TrustPower application. While it is council staff preference to notify post technical assessment, TrustPower have opted for the other alternative provided by s91 of the Act”.

The MDC initially took the same view. Their consultant wrote to TPL on 2 August 2005 saying that “we are firmly of the opinion that independent technical reviews are required to be completed prior to the notification of the applications. It is recognised that the technical review process may mean a delay in the public notification of the application. However we believe that a simpler and more complete public notification process will result from the completion of such reviews”.

In response TPL considered that waiting for those reviews prior to notification was not vires. Section 91(1) of the Act allows a consent authority to delay notification only if it has determined that other resource consents are required for the proposed activity, and that these consents are necessary to better understand the proposal and should be applied for before proceeding further. Accordingly TPL sought the prompt notification of the applications and MDC acceded to this request.

In the end, two tranches of consent applications were made by TPL. The second application, made in March 2006, related to the taking of groundwater when it became apparent following the peer review reports that the proposed canal would capture some considerable volume (up to perhaps 4 m3/s) of groundwater. TPL asserted that this application was made only “out of an abundance of caution”.

10.1 Comment

While there was criticism that the applications were notified prior to the s92 peer reviews being completed, this is what is provided for by the RMA. There is existing case law that indicates that the power of the consent authority under s91 is subservient to the requirement in s21 of the Act that a consent authority act expeditiously to process consents.⁸ However, this needs to be contrasted with further case law that suggests that good resource management practice requires, in general, that all necessary resource consents are indentified from the outset and applications made so that they can also be considered together.⁹

There is some merit in both sides of this matter. First, an applicant who has provided comprehensive consent applications should be able to seek notification as soon as reasonably possible. Delaying notification until s92 peer review reports are completed could add several months to the process pre-hearing. Conversely, if the peer review reports help parties understand a complex application, there may be justifiable grounds to delay notification until they are completed.

The Wairau HEP proposal led to strong opposition from sections of the Marlborough community. It appears that attempting to delay the process, and so make it more costly for the applicant, was one of the tactics employed by the opponents of the scheme. In this case TPL exercised its right to have the applications notified as soon as possible, but perhaps in retrospect this was not the most appropriate approach in the circumstances.